Thong Ah Fat v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 30 November 2011
• Neutral Citation: [2011] SGCA 65
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeal No 13 of 2010 (Criminal Case No 17 of 2010)
• Year: 2011
• Published date: 05 December 2011
• Hearing Date: 02 March 2011
• Plaintiff Counsel: Boon Khoon Lim and Chua Siow Lee Dora (Dora Boon & Company)
• Defendant Counsel: Siva Shanmugam and Samuel Chua (Attorney-General's Chambers)
• Subject Matter: CRIMINAL PROCEDURE AND SENTENCING,Appeal,procedure,retrial,High Court,irregularities in proceedings
• Citation: [2011] SGCA 65

V K Rajah JA (delivering the judgment of the court): Introduction

This is an appeal brought by Thong Ah Fat (“the Appellant”) against the decision of the trial judge (“the Judge”) in Public Prosecutor v Thong Ah Fat [2010] SGHC 227 (“the Judgment”). The Appellant was charged with committing the following offence:

That you, Thong Ah Fat,

on 12 January 2009, at or about 4.55 p.m., at the Woodlands Checkpoint Green Channel Arrival Car Zone 100% Inspection Pit, Singapore, did import into Singapore a controlled drug that is specified in Class “A” of the First Schedule to the Misuse of Drugs Act, Chapter 185, to wit, by driving into Singapore a car bearing Malaysian registration number JKQ 7274 with drugs containing not less than 142.41 grams of Diamorphine, without authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under section 7 and punishable under section 33 of the Misuse of Drugs Act, Chapter 185.

The Judge, in a brief judgment of five paragraphs, explained why he found the Appellant guilty of the charge and upon convicting him, sentenced him to suffer the mandatory death penalty. To facilitate the understanding of our grounds, we think it will be helpful to set out the Judgment in full: 1 The accused was a 32-year old Malaysian. He drove to Singapore on 12 January 2009 and arrived at the Woodlands Checkpoint about 4.55pm. His car JKQ 7274 was searched and 142.41g of diamorphine were found in ten packets wrapped in plastic. Five of the packets were found under the driver’s seat and another five were found in the haversack found on the floorboard behind the driver’s seat. 2 The prosecution adduced evidence to show that the ten packets contained 142.41g of diamorphine. The accused did not challenge the scientific evidence and the defence was that the accused thought that he was carrying “ice”, the colloquial term for methamphetamine, which is a different drug from diamorphine. 3 The prosecution adduced one contemporaneous statement by the accused and recorded by Senior Staff Sergeant Koh Yew Fie (“SSSgt Koh”) on 12 January 2009, and six other statements recorded by Woman Inspector Wong Jin Shan Agnes on 14 January 2009, 15 January 2009, 16 January 2009 (two statements) and 16 September 2009. The accused only challenged the admissibility of the statement recorded by SSSgt Koh. He claimed that the statement was not voluntarily given because SSSgt Koh falsely induced him to admit that he knew that he was carrying diamorphine. The statement referred to the diamorphine as “Beh Hoon”, the common term for heroin, but the accused denied knowing that. I disbelieved him and his account of what happened between him and SSSgt Koh because it was neither convincing nor coherent. Furthermore, the accused claimed that he gave the statement after he was told by SSSgt Koh “if you want to enjoy you must live with the consequences”. His testimony did not convince me that this led to a weakening of his resolve such that he gave answers to SSSgt Koh’s questions which he would not have done so otherwise. He was also inconsistent as to when this remark by SSSgt Koh was made. The accused’s second assertion was that SSSgt Koh told him that he (SSSgt Koh) would speak to the judge and get the court to sentence the accused to “8 to 10” years imprisonment only The evidence of the accused on this point was weak, and even if I found that this was true, he admitted that such a statement was only said once and that it was made after he had already given the answers. Consequently, I admitted the statement as I was satisfied that it was not made under any threat, inducement, or promise. 4 The accused’s defence was that he had no knowledge that the ten packets contained heroin. He asserted that only one packet was opened and he had no idea that the other nine contained the same white powdery substance. He claimed that he believed he was carrying “ice”, a different drug from diamorphine. He said that he used to smoke “ice” in Malaysia and he had been enticed into smoking it by his supplier. Counsel for the accused submitted that [t]he accused was a gullible person. He did not, however seem so to me. The evidence given by the accused was very thin and did not raise any doubt in my mind that he knew that he was carrying diamorphine. Additionally, he failed to give a reasonable explanation as to why he did not say in his s 122(6) statement that he thought he was carrying diamorphine. Instead, he said that he had nothing to say. 5 For the reasons above, I was satisfied that the accused knew that he was carrying diamorphine in the ten packets seized from him on the day of his arrest. I therefore found him guilty as charged and sentenced him to suffer death.

[emphasis in original in italics; emphasis added in bold italics]

The substantive issue arising from the appeal

The Appellant did not dispute that he knew he was importing controlled drugs into Singapore without authorisation at the material time. What was disputed at trial and on appeal was the Appellant’s knowledge pertaining to the nature of drugs found in his possession. The crux of the Appellant’s defence was that while he knew he was importing controlled drugs into Singapore, he thought that he was transporting methamphetamine and not diamorphine.

In Tan Kiam Peng v Public Prosecutor [2008] 1 SLR(R) 1 (“Tan Kiam Peng”), this Court observed that there are two possible interpretations of the requisite mens rea under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). The first is that it suffices that the accused only had knowledge that the drug concerned is a controlled drug (“the first interpretation”): see Tan Kiam Peng at [80] and [83]–[89]. The alternative interpretation is that the requisite knowledge is knowledge that the drug concerned is not only a controlled drug but also the specific drug, which it turns out, the accused was in possession of (“the second interpretation”): see Tan Kiam Peng at [81] and [90]–[91].

Because the parties in Tan Kiam Peng did not make any detailed argument with respect to which of these two interpretations was correct, no definitive conclusion on this point was expressed by this Court then. This Court based its eventual decision on the second interpretation to give the accused person there the benefit of the doubt.

For completeness, we should mention that since this appeal was heard, an important decision of this Court, Nagaenthran a/l K Dharmalingam v Public Prosecutor [2011] SGCA 49 (“Nagaenthran”), has clarified the position on this issue. In Nagaenthran, this Court stated that (at [23]):

In our view, while there may be a conceptual distinction between [the first interpretation] (that the knowledge in s 18(2) of the MDA refers to knowledge that the drug is a controlled drug) and [the second interpretation] (that the knowledge in s 18(2) of the MDA refers to knowledge that the drug is a specific controlled drug, eg, heroin or “ice”), the distinction has no practical significance for the purposes of rebutting the presumption of knowledge of the nature of the controlled drug. To rebut the presumption of knowledge, all the accused has to do is to prove, on a balance of probabilities, that he did not know the nature of the controlled drug referred to in the charge. The material issue in s 18(2) of the MDA is not the existence of the accused’s knowledge of the controlled drug, but the non-existence of such knowledge on his part. [emphasis in original in italics; emphasis added in bold italics]

Evidence adduced

Given our determination that there should be a retrial in this case, we will confine the scope and detail of our discussion of the evidence to that necessary to explain our decision.

The Defence relied on certain events and circumstances which allegedly existed and caused the Appellant to form his mistaken belief that he was carrying methamphetamine. These allegations included: several occasions where the Appellant consumed drugs at his drug supplier’s place in Malaysia, where only methamphetamine was involved (“the Consumption Incidents”); a prior trafficking incident (“the First Trafficking Incident”) which he carried out for the aforementioned drug supplier, one Wong Chan Hoong (“Ah Hong”) and allegedly learnt that the trafficked drugs would be methamphetamine; the fact that he did not check the contents of the packets on the occasion which resulted in his arrest; and his own gullibility.

The Prosecution adduced a statement which was recorded from the Appellant shortly after his arrest (“the contemporaneous statement”), a cautioned statement which was recorded pursuant to s 122(6) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”) and various long statements which were recorded during the course of subsequent investigations, pursuant to s 121 of the CPC.

The contemporaneous statement contained several questions put to the Appellant and his replies to those questions. Its admissibility was challenged by the Defence. The Appellant’s reply to the charge and warning, as recorded in the cautioned statement, was that he had nothing to say. Its admissibility was unchallenged. The long statements revealed the Appellant’s background, his supplier of controlled drugs for consumption and trafficking (namely Ah Hong), Ah Hong’s associates, the particulars of the Consumption Incidents, the particulars of the First Trafficking Incident and the events which took place on the day of his arrest. The admissibility and veracity of the long statements were also unchallenged. The nature and relevance of all these statements will be further discussed where they are germane.

The Judge’s findings of fact and reasoning

The Judge made the following findings of fact. He disbelieved the Appellant’s account of the recording of the...